Crossing U.S. borders has never been easy, but today’s business travelers face an unprecedented range of issues amidst a constantly-shifting legal and regulatory landscape. Within the past month alone, the U.S. government has rolled out three new sets of travel restrictions: an expansion of the “Trump Travel Ban,” a so-called “birth tourism” ban, and a travel ban designed to contain the spread of the COVID-19 coronavirus. While these recent policies have differing levels of impact on business travel, they highlight how quickly U.S. cross-border travel rules are changing.
In this context, it is not surprising that most employers, HR and global mobility professionals, and the mobile workforces they support are ill-prepared to track the numerous compliance and regulatory issues that affect their businesses. Travelers must be ready for increasingly-hostile questioning from U.S. Customs and Border Protection (CBP) agents about the nature of their travel, itinerary while in the U.S., and whether their planned activities violate U.S. work authorization laws. President Trump’s administrative priorities have created an “enforcement-oriented” environment, and travelers need to be aware that the 4th Amendment evaporates at the border; most normal rights are suspended, even for U.S. citizens.
Business travelers must clearly understand and be able to articulate the facts of their travel; they must review their petition documents and be fluent in how the company’s attorneys and HR personnel have structured their work — which may actually differ from how the travelers understand their roles and their work. And it should be recognized that the CBP officers interviewing them are deliberately trying to lead travelers toward a damaging admission. The risks of non-compliance or possible findings of fraud by the CBP are severe: Without fluency in facts, travelers can be refused entry and even permanently banned from the United States.
Once the paperwork has been cleared, there is a secondary inspection. Traveler rights are, again, limited, although there are some inspection exceptions for such privileged information as attorney-client privileged documents. At the other end of the spectrum, some businesses will face enhanced scrutiny due to industry-specific issues. For instance, those in the cannabis industry must deal with DEA Schedule I complications. And, of course, businesses whose work is related to national defense or is in critical IP industries related to Chinese military/industrial espionage concerns are subject to demanding compliance regulations.
CBP has the right to search electronic devices, and, while U.S. citizens are not required to provide passwords, it should be noted that there are consequences for such non-compliance.
There are strategies that mitigate electronic-device searches by the CBP: Travel with few devices and/or with burner devices. Ship encrypted devices in advance of travel (U.S. Customs can still, technically, inspect packages, but this is rare). Segregate sensitive information to the cloud to avoid inspection. Back up sensitive data — especially as CBP has a record of randomly wiping devices. Clear the browser history and cache.
Employers would be wise to develop formal electronic search policies to address such aspects as protecting sensitive information, controlling risk and exposing privileged information. IT solutions enable cloud-based segregation of critical data, for instance, and allow for cloud-based backups of devices that are wiped for border crossing so that information can be restored once the traveler is in the U.S.
Non-Residents Already Here
Employers with Europeans already in the U.S. should seek legal counsel on options for these individuals. While
these individuals are not subject to this new ban, the measures in their own countries combined with the new ban here
in the U.S. may create circumstances where someone who needs to go back to their home country in Europe to renew their passport or other key documents will not be able to re-enter upon renewal.
More Travel Bans?
Businesses that have people or operations anywhere in the world need to start implementing strategies now as they should assume more bans are on the way.
In addition to bans is the issue of quarantine. In fact, according to CBP, all people entering the U.S. from any country subject to the ban could face quarantine upon their entry to the U.S. There are 20 active quarantine stations in the U.S., and the CBP and the Centers for Disease Control have authority — without these bans — to detain even U.S. citizens in such facilities.
We are relying on authorities at the point of origin to enforce this ban — but what quarantine measures should we be implementing here at home? The World Health Organization, the CDC and other reputable medical organizations do not appear to be on the same page with the White House. As a result, employers are having a hard time understanding what they can do to keep their employees and workplaces safe beyond limiting travel without running afoul of claims from employees alleging discrimination or privacy violations.
“Employers with Europeans already in the U.S. should seek legal counsel on options for these individuals. While these individuals are not subject to this new ban, the measures in their own countries combined with the new ban here in the U.S. may create circumstances where someone who needs to go back to their home country in Europe to renew their passport or other key documents will not be able to re-enter upon renewal,” Bernhard says
Rebecca Bernhard is a Partner at the international law firm Dorsey & Whitney LLP, specializing in U.S. immigration and labor and employment law. Bernhard is a frequent author and speaker on issues confronting HR professionals, including immigration compliance, I-9 audit, and cross-border issues.